Canadian Safety Reporter

©2015 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — www.hrreporter.com • Canadian Occupational Safety magazine — www.cos-mag.com • Canadian Payroll Reporter — www.payroll-reporter.com • Canadian Employment Law Today — www.employmentlawtoday.com • Canadian Labour Reporter — www.labour-reporter.com See carswell.com for information Safety Reporter Canadian www.safetyreporter.com Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations @thomsonreuters.com Website: www.carswell.com One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media Karen Lorimer Publisher John Hobel (On leave) Associate Publisher/Managing Editor Todd Humber Lead Editor Sarah Dobson Assistant Editor Mallory Hendry (On Leave) Assistant Editor Anastasiya Jogal Contributing Editors Liz Foster Sabrina Nanji Liz Bernier Jeffrey R. Smith Marketing Manager Mohammad Ali mm.ali@thomsonreuters.com (416) 609-5866 Circulation Co-ordinator Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 'Harassment aff ects everyone in work environment' have been prevented? Probably." Many organizations are still not doing the kind of training they need, said Strauss. "That said, training is not the be-all end-all. Training just be- gins the discussion. So they need to have comprehensive policies, for example, that identify sexual harassment and that it can be gender-based and not just sexu- al. So that needs to be included in their definition in their policy. Then, they need to have a sub- ject-matter expert do their train- ing — and it needs to be more than just an hour. It needs to be something longer than a 20- or 30-minute online program," she said. "They also need to make sure that they're including the more subtle and nuanced forms of sexual harassment." And the bottom line for em- ployers? Anyone can be a perpe- trator and anyone can be a vic- tim, said Stockdale. "(Employers should) not dis- criminate against men as vic- tims. If a man comes forward with a complaint of sexual ha- rassment, whether it's by a man or a woman, it needs to be inves- tigated and taken as seriously as when a woman complains. Men can be harmed by sexual harass- ment just as women can be, and one of the issues of sexual ha- rassment is it doesn't just affect the individual who is the target of the harassment, it tends to af- fect everybody else in that work environment as well," she said. "Management may have to take a strong stand and show with their words and with their actions that sexual harassment is not tolerated regardless of who the target is, and regardless of who the perpetrator is." Men < pg. 2 duty of confidentiality and pri- vacy which he owed to all of the employees in his care by placing himself and employees he was counselling in a variety of pub- lic places where the employees were exposed." This failing is "expressly con- trary" to confidentiality require- ments, said Picher. A lot of times, as part of treat- ment, especially for somebody with anxiety disorders, a client is given "homework" to go out on her own and practise relax- ation strategies but, in this case, these external sessions were not appropriate, said Rubel. "That is not good practice — you would never want to do a counselling session in a public place because there's just too many extraneous variables to control for." And if an employee ever is un- happy with his counsellor, he can request another. "The therapeutic relationship is really important so if a cli- ent... meets the counsellor and it doesn't seem that it's a good fit for him or her, then we will be more than happy to provide another counsellor to replace the other one," said Rubel, add- ing some people prefer older or younger therapists, or male or female ones. "Whenever possible, we try to match those requests." Employer's role In the end, it appears the em- ployer only became aware of some of the allegations at a grievance meeting in April 2014, found the arbitrator. "Be that as it may… it cannot be seriously argued that the HEA can disclaim all responsibility for the actions of Counsellor J on the basis that he did not specifically know of them or endorse them," said Picher. Despite the contracts with Mediavie Blue Cross and She- pell-fgi, Counsellor J was effec- tively chosen by the HEA, he said. "The employer cannot dis- avow or escape responsibility for the actions of its chosen agent and must bear liability for any violation, in the course of his du- ties, of the rights of employees in the bargaining unit for which he is responsible." While Counsellor J did pro- vide valuable counselling, said Picher, there were instances where the privacy and confi- dentiality rights of employees were denied. But the measures of damages must be kept in "rea- sonable perspective," he said. "There is no medical evidence or other documentary mate- rial filed by the union before the arbitrator to suggest or confirm that the employees affected suf- fered substantial medical im- pacts, such as clinical depres- sion, by reason of their dealings with the counsellor." As a result, for the violation of an their rights of privacy and confidentiality, one employee was to be compensated $5,000 and another $2,500 while a third was to receive $1,500 for unpro- fessional communications. And any reports from the counsellor containing inappro- priate personal information, such as a private medical diag- nosis, were to be purged. "I'm not faulting employers because this is not their special- ty, they go to a legitimate, rec- ognized provider and say, 'Can you provide me with an EAP?' and they trust it… but no one did any checking in this case," said Pink. "In the end, the employer said, 'We won't use him anymore' so it's all kind of moot in the end, but it's a pretty good shot across the bow as to how these things ought to work overall." Workers compensated for violation of privacy rights Counsellor < pg. 6 CSR | September 2015 | News

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